On Monday, District Court Judge Thomas F. Hogan handed the government its ninth victory (against 31 losses to date) in the habeas corpus petitions of the prisoners held at Guantánamo, ruling that the government had established, by a preponderance of the evidence, that Musa’ab al-Madhwani, a 28-year old Yemeni, could continue to be held indefinitely, because of his connections with al-Qaeda.

As the Washington Post explained, however, although Judge Hogan “said that the government had met its burden in proving the accusations … he did not think Madhwani was dangerous.” Noting that he has been a “model prisoner” since his arrival at Guantánamo in October 2002, he explained, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.”

Moreover, Judge Hogan refused to rely on any statements that al-Madhwani had made to interrogators at Guantánamo, ruling that they were “tainted by abusive interrogation techniques,” to which he was subjected in the weeks after his capture, before his arrival at Guantánamo, when he was sent to the “Dark Prison” near Kabul, a facility run by the CIA, which, in numerous accounts by released prisoners, resembled nothing less than a medieval torture dungeon, with the addition of extremely loud music and noise 24 hours a day.

Judge Hogan did, however, accept statements that al-Madhwani made during his Administrative Review Board at Guantánamo in 2005, which, he said, were not tainted because they were made years after the abuse took place. Al-Madhwani’s lawyers had argued that these statements should also have been excluded, stating, as the Post put it, that they were “contaminated because he was still worried about upsetting his captors.” One of his attorneys, Darold W. Killmer, explained, “He was threatened that if he changed his story, he would be sent back to a place worse than at the ‘Dark Prison.’”

The Ramzi bin al-Shibh connection

In truth, it was always going to be difficult to convince a judge to accept al-Madhwani’s habeas petition, for the simple reason that he was seized after a raid on an apartment block in Karachi, Pakistan, and a firefight with the Pakistani authorities, on September 11, 2002, with Ramzi bin al-Shibh, one of the five alleged 9/11 co-conspirators, and Hassan bin Attash, the brother of Walid bin Attash, another of the alleged 9/11 co-conspirators.

Unlike al-Madhwani, and five other Yemenis seized after the firefight, who were held in the “Dark Prison” for up to six weeks, before they were flown to Guantánamo, bin al-Shibh was rendered to Thailand after his capture, and held for four years in secret CIA prisons, subjected to an array of “enhanced interrogation techniques,” and bin Attash, after a week in the “Dark Prison,” was rendered to Jordan, where, despite being just 17 years old at the time of his capture, he was held for 16 months in one of the CIA’s proxy torture prisons, before being flown to the US prison at Bagram airbase in Afghanistan, and then on to Guantánamo in September 2004.

With these kinds of connections, it’s easy to see why a judge would conclude that al-Madhwani was connected to al-Qaeda, and would accept, as the Post described it, the government’s allegations that he “traveled to Pakistan to join al-Qaeda, trained at an al-Qaeda camp, traveled with al-Qaeda members in Afghanistan and Pakistan and engaged in a firefight with Pakistani authorities before his arrest.”

Musa’ab al-Madhwani’s story

As al-Madhwani explained at his Administrative Review Board, he arrived in Afghanistan in August 2001, when he was 21 years old, at the urging of a recruiters in his homeland, and trained briefly at al-Farouq (a training camp associated with Osama bin Laden in the years before the 9/11 attacks) until it closed immediately after the attacks. After spending a few months in guest houses in Afghanistan, he made his way to Pakistan via Khost, traveling with other Arabs, Pakistanis and Afghans, and then, after trying unsuccessfully to return home via Iran, where, he said, he was “beaten and questioned” before being refused entry, spent ten months being moved around various houses in Lahore, Quetta and Karachi, waiting for an opportunity to return home that never came.

Moreover, when he explained the situation in Karachi at the time of his arrest, an even less militant picture emerged. “The group I was arrested with were staying in two apartments,” he said. “One person from each apartment refused to surrender and fought the Pakistani forces sent to arrest us. I was in the group that chose to surrender.” He added that the Pakistanis were “thankful for our cooperation and surrendering without fighting.” He then explained that there were seven men in his apartment, including one who was killed, who had only been there for about five days, and that two other men — presumably bin al-Shibh and bin Attash — shared the other apartment with a family.

In his Review Board, he spoke only briefly about the “Dark Prison,” but it was easy to understand why Judge Hogan, who also spoke to him by video-link from Guantánamo, concluded that his “allegations about abusive interrogations were credible,” and, noticeably, added that they “were not challenged by government lawyers.” In 2005, when a Board Member asked him, “Are you holding anything back from the interrogators?” he replied, “That is impossible, because before I came to the prison in Guantánamo Bay I was in another prison in Afghanistan, under the ground [and] it was very dark, total dark, under torturing and without sleep. It was impossible that I could get out of there alive. I was really beaten and tortured.”

If this picture indicates someone who, as I explained in The Guantánamo Files, with reference to other prisoners seized elsewhere in Pakistan, was a “recent Taliban recruit who ended up in Karachi as part of an extended safe house system that was sheltering all Arabs from arrest, and not just those who were committed to al-Qaeda,” it is, I believe, a picture that shifts into sharper focus through the stories of the other five men seized with al-Madhwani, aged between 21 and 28 at the time of their capture, none of whom have yet had their habeas corpus petitions ruled upon by a judge.

The other five men seized with Musa’ab al-Madhwani

Ha’il al-Maythali, for example, explained in Guantánamo that he went to Afghanistan in November 2000 to “fight in the jihad,” and admitted ferrying supplies on the back lines near Kabul, but said that he was only on the front lines for a week because he had no military experience. The only one of the five to mention the “Dark Prison,” he said that “there was very bad torture conducted on people,” including himself, which was “so bad that he knew by making up and agreeing to the training it would stop the torture.” He added that “his testicles were disfigured to the point where they cannot be repaired.”

Said Nashir was accused of attending the al-Farouq camp from July to September 2001, and also attending two speeches by Osama bin Laden while he was there, which was typical of the experiences of new recruits, and Shawki Balzuhair was accused of traveling to Afghanistan in April or May 2001, attending al-Farouq, and serving on the Taliban front lines near Bagram. A greater degree of commitment was hinted at in the case of Ayoub Ali Saleh, who reportedly traveled to Afghanistan to join the jihad in 2000, and trained extensively at al-Farouq, but Bashir al-Marwalah’s story is probably the most revealing.

Al-Marwalah admitted traveling to Afghanistan in September 2000 and training at al-Farouq and another camp, but said that he then returned to Yemen to see his family, and especially his father, who was ill. He said that he then returned to Afghanistan in August 2001 and attended al-Farouq again, but refuted an allegation that he had participated in military operations against the US-led coalition, and said that he had fled to Pakistan after the US-led invasion began. When the tribunal asked him why he had gone to Afghanistan, he said that he wanted to train to fight in Chechnya, and when he was asked, “Are you a member of al-Qaeda?” he said, “I don’t know. I know I am an Arab fighter.”

I may be wide of the mark in my assessment of Musa’ab al-Madhwani and the other five men mentioned above, but no other information has been forthcoming to suggest that this is the case — from Ramzi bin al-Shibh or Hassan bin Attash, for example, in thinly-disguised references to allegations made by “senior al-Qaeda operatives,” tying the men into any terrorist plots or operations.

Challenging indefinite detention

While the others, presumably, await rulings on their habeas corpus petitions, al-Madhwani joins the other eight prisoners whosepetitionsfailed in a peculiar legal netherworld, no longer regarded as “enemy combatants” by the Obama administration, but still detained indefinitely as though they were. This is in spite of the fact that, in most of these cases, the men in question are not the “terrorists” of right-wing propaganda, but are, instead, unacknowledged prisoners of war, who, instead of being held according to the Geneva Conventions, have had to endure long imprisonment in an experimental prison devoted to dehumanizing isolation and coercive interrogations, and remain, essentially, as a peculiar category of prisoner with no legal or historical precedent.

For someone like al-Madhwani, regarded by the judge as posing no danger, it is, perhaps, time for an appeal that draws on a case overlooked by Judge Hogan: that of Yasim Barardah, a Yemeni whose habeas petition was granted by Judge Ellen Segal Huvelle on March 31 this year.

In her ruling, Judge Huvelle suggested that the prisoners in Guantánamo were akin to prisoners of war, but with the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. Judge Huvelle drew on the Authorization for Use of Military Force, passed by Congress on September 18, 2001, which authorized the President to “use all necessary and appropriate force” against those involved in the 9/11 attacks, or those who supported them. The AUMF is relied upon by the Obama administration to justify the detention of the prisoners at Guantánamo, but, as Judge Huvelle explained, it “does not authorize unlimited, unreviewable detention,” but instead authorizes holding people “in order to prevent any future acts of international terrorism”; in other words, “the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

And that, I think, based on Judge Hogan’s comments, is a pretty straightforward definition of the position in which Musa’ab al-Madhwani finds himself, seven years and three months after his capture.

Note: The Pentagon referred to Musa’ab al-Madhwani as Musab al-Mudwani, or Musab al-Madoonee.

POSTSCRIPT April 2010: I have not found the opportunity to review Judge Hogan’s unclassified opinion (PDF), which was made available on January 6, 2010, but I wish to make it clear that my presumption that the capture of al-Madhwani had anything to do with the capture, around the same time, of Ramzi bin al-Shibh and Hassan bin Attash is clearly mistaken. The events appear to be entirely unconnected, as al-Madhwani was seized several miles away from the apartment occupied by bin al-Shibh and bin Attash. In my defense, I can only state that I was working with the available material, and had succumbed to a narrative that the Pentagon and the Justice Department wished to portray, even though it was untrue.

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Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington